Judges MacPhail and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 112 Pa. Commw. Page 517]

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals a Lycoming County Court of Common Pleas order which reversed DOT's decision to suspend the motor vehicle registration and operator's license of June Marie Vogt (Vogt). We reverse.

The relevant facts in this matter can be summarized as follows. On June 6, 1985, Vogt was driving a vehicle which was involved in an accident. On or about October 8, 1985, Vogt was advised by DOT that her operator's license and motor vehicle registration would be suspended pursuant to Section 1785 of the Vehicle Code, 75 Pa. C.S. § 1785 because Vogt had failed to maintain financial responsibility on her motor vehicle.*fn1 On November 6, 1985, Vogt appealed the DOT suspension to the Court of Common Pleas of Lycoming County and on January 22, 1986 a hearing was conducted. DOT introduced in support of the suspension, the October 8, 1985 official notice of suspension, the accident report, and a certified copy of Vogt's driving record. The trial court ruled that the accident report was admissible for the limited purpose of showing that such a report was received by DOT in the ordinary course of business and that the certified copy of Vogt's driving record was admissible for the limited purpose of showing the basis for the action initiated by DOT against Vogt. At the hearing, DOT called Vogt as its only witness. After responding to DOT's preliminary questions regarding her name and address, Vogt invoked her Fifth Amendment right against self-incrimination. The trial court denied Vogt her right to exercise the Fifth Amendment and ordered her to continue testifying. Nevertheless, Vogt's attorney

[ 112 Pa. Commw. Page 518]

made a continuing objection on the record as to further questions.*fn2

At the close of the hearing before the trial court, both parties were directed to submit briefs regarding the Fifth Amendment right to remain silent issue raised by Vogt. The trial court directed Vogt to submit a brief by February 3, 1986 and DOT to file a responsive brief on or before February 10, 1986. Vogt filed a timely brief; however, DOT failed to file a responsive brief. On February 25, 1986, the trial court issued an opinion and order concluding that DOT had abandoned the issue regarding Vogt's Fifth Amendment right against self-incrimination because it had failed to file a responsive brief. For this reason, Vogt's testimony was ordered stricken. The trial court opined that absent Vogt's testimony, DOT's proof was insufficient to prove that Vogt violated Section 1785 of the Vehicle Code. The trial court further reasoned that had it addressed the Fifth Amendment issue it would have ruled that Vogt did properly invoke her Fifth Amendment right to remain silent and therefore it was improper for Vogt to testify at the hearing before the trial court.

The first issue presented for our resolution is whether the trial court erred when it concluded that DOT waived the Fifth Amendment-self-incrimination issue

[ 112 Pa. Commw. Page 519]

by failing to submit a brief. It is provided in ...

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